Killer drones are the future of warfare. Their use, viewed from one angle, generates few legal problems insofar as drones merely provide another tool for the longstanding military practice of killing enemies from the air. Yet, since the drone’s extraordinary capabilities have greatly expanded the government’s range for finding, tracking, and killing human targets in Afghanistan, Pakistan, and other places, commentators debate whether it is legal to kill suspected terrorists in self-defense or as part of an armed conflict – or whether America’s targeted killing is murder.

Assuming international humanitarian law (IHL) applies, we develop specific regulations for the CIA’s targeted killing of active members of al Qaeda and the Taliban. Our analysis complements a prior article that applied the enemy-combatant cases from the United States Supreme Court (Hamdi and Boumediene) as a parallel path toward internal due process. Whether through IHL or by American due process, we argue for heightened review from the CIA’s Inspector General.

To honor IHL’s principles of distinction and military necessity, we explain why the drone operator must be sure beyond a reasonable doubt that the trigger is being pulled on a functional enemy combatant. To honor IHL’s principle of precaution, we also explain why the CIA’s Inspector General must review every CIA drone strike, including the agency’s compliance with a checklist of standards and procedures for the drone program. To reach these conclusions, we adopt guidance from the International Committee of the Red Cross on who falls within the category of people “directly participating in hostilities,” subjecting them to targeting, and we apply techniques from American administrative law.

We also consider targeting American citizens. A program that establishes a very high certainty for targeting as well as a “hard-look” after each strike helps ensure fairness and accuracy regardless of the citizenship of the people in the cross-hairs. In today’s language of IHL, these are “feasible precautions” for the remote-control weapons of the new century.

State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism – a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and beyond the terrorism context.

The Article suggests that one direct implication of the failure to accurately define terrorism and make it an element of terrorism crimes is that the distinction between terrorism and “ordinary” crime becomes ambiguous. The Article identifies an unexplored problem in the criminal law against terrorism: unlimited prosecutorial discretion enables prosecutors to misuse terrorism-related offenses in cases that are unrelated to terrorism as this term is commonly understood. The Article examines the risks and unintended consequences of this prosecutorial practice, ranging from treating similarly situated defendants differently to potentially opening the door to additional applications of terrorism-related offenses in contexts such as drug trafficking.

To remedy the above problems, the Article proposes legislative reform concerning the elements of terrorism offenses by making specific intent to coerce governments to change their actions and policies the required mental state for conviction.

Ten years ago, the events of September 11 stunned America. Devastating terrorist attacks forced the nation to fundamentally reassess American national security. Why was the United States targeted? How did al Qaeda succeed? Can we prevent future attacks? What means are legal and appropriate to defeat al Qaeda? Does the Obama administration represent continuity or a sea change in counterterrorism strategy and tactics? The nation continues to grapple with these questions a decade later.

Edited by John Yoo, an AEI visiting scholar and former Justice Department official, and Dean Reuter, vice president of the Federalist Society, Confronting Terror sets the stage for a robust discussion of the future of America’s fight against terrorism with new essays examining the meaning of 9/11 and the law and policy of the war on terrorism. Contributors include leading voices from all sides of the political and policy spectrum on America’s approach to this struggle. In surveying these views, Yoo hopes to clarify the debate, both for our society and for those responsible for waging the war.

Table of Contents:

Introduction

Dean Reuter 1

In Memory of Barbara K. Olson

Theodore B. Olson 9

The Obama Response to September 11

Victor Davis Hanson 23

9/11 in its Historical Context

Arthur Herman 37

War V. Crime: Breaking the Chains of the Old

Security Paradigm

Michael Chertoff 51

A Unified Defense Against Terrorists

Edwin Meese III and Paul Rosenzweig 65

Reforming the Intelligence Community

The Honorable Laurence H. Silberman 77

Thee Imperfect Reconciliation of Liberty and Security

Richard A. Epstein 89

Torture and Democratic Accountability: an Oxymoron?

Alan Dershowitz 103

Nuremberg Revisited and Revised: the Legitimation of Torture in the United States